An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-436 NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
OCTAVIA SCOTT, Plaintiff,
v. Union County Nos. 12 CVD 2045, 07 CVD 1844 MAURICE MURRAY, Defendant.
Appeal by defendant from order entered 13 December 2012 by
Judge Hunt Gwyn in Union County District Court. Heard in the
Court of Appeals 26 September 2013.
Vann Law Firm, P.A., by Christopher M. Vann, for plaintiff– appellee.
Krusch & Sellers, P.A., by Rebecca K. Watts, for defendant- appellant.
BRYANT, Judge.
Where the trial court’s findings of facts do not support
its conclusion that Scott has rebutted the presumption that
Murray’s first marriage ended with a valid divorce, we reverse
the trial court’s order as it relates to the annulment of
Scott’s marriage for bigamy. Likewise, we reverse the trial
court’s order granting Scott reformation of deeds to real -2- property on the basis of fraud. As it appears marital property
was acquired during Scott and Murray’s marriage, we reverse the
trial court’s dismissal of Murray’s equitable distribution
claim.
On 28 March 2007, a verified complaint filed in Mecklenburg
County District Court by Maurice Murray raised issues of
custody, child support, and equitable distribution of property
acquired during the marriage between Murray and Octavia Scott1.
On 1 May 2007, Scott filed an answer and counterclaims for
custody and support, post-separation support and alimony,
attorney fees, and equitable distribution.
On 13 June 2007, the Mecklenburg County District Court
entered an order pursuant to Scott’s motion and amended motion
changing venue to Union County.
In orders filed 16 November 2007 and 25 July 2008, the
Union County District Court addressed issues of permanent
custody and child support, respectively.
Four years later, on 17 July 2012, Scott filed a complaint
in Union County District Court seeking an annulment of the
1 In Murray’s custody, child support, and equitable distribution complaint filed in Mecklenburg County on 28 March 2007, the defendant is listed as Octavia Murray; however, in subsequent court documents and the order from which the appeal is taken, this party is referred to as Octavia Scott. For purposes of consistency, we refer to Octavia Scott throughout the opinion. -3- marriage and deed reformation. She alleged that she purchased
two properties during the purported marriage and allowed
Murray’s name on the deeds only because of his status as spouse.
The outstanding matters were heard in Union County District
Court during the term commencing 1 October 2012 before the
Honorable Hunt Gwyn, Judge presiding. On 13 December 2012, the
trial court entered an Order for Annulment, Deed Reformation,
Attorney’s Fees, and Dismissal of Equitable Distribution.2
In its order, the trial court found that Scott and Murray
entered into a purported marriage on 13 February 2003; one child
was born of the union. On 9 March 2007, the parties separated.
The court found that on the parties’ marriage application,
Murray answered “no” to the question “have you ever been married
before” but during the hearing before the District Court,
testified that he knew the answer to be “yes.” Murray testified
that he answered “no” for “expediency” so that he could relocate
2 The 13 December 2012 order for annulment, deed reformation, attorney’s fees, and dismissal of equitable distribution lists two docket numbers, 12 CVD 2045 and 07 CVD 1844. Docket number 12 CVD 2045 relates to Scott’s complaint seeking annulment and deed reformation. Docket number 07 CVD 1844 relates to Murray’s verified complaint seeking custody, child support, and equitable distribution after venue in the action was changed to Union County. Because the 13 December 2012 order from which the appeal arises refers to Scott as plaintiff and Murray as defendant, we will adhere to this party designation where appropriate. -4- from a halfway house in Philadelphia to the Union County /
Charlotte area. In January 2009, Scott contacted a woman whom
she came to believe may have been previously married to Murray,
Alice Bowen. Alice Bowen confirmed that she had been married to
Murray in the early 1980s. The trial court found that Scott
filed a discovery request and subsequent motion to compel Murray
to produce proof of divorce; and that Murray failed to produce a
divorce decree or other proof of divorce.3 As to the issue of
Murray’s credibility, the trial court also found that Murray
admitted to committing tax fraud and mortgage fraud (at trial,
Murray responded to questions regarding a failure to report
income for tax purposes and selling a residential property
damaged by fire without disclosing the fire damage); that he had
been convicted under an alias; and that he was untruthful to
Scott about his criminal convictions. The trial court concluded
that Scott rebutted the presumption that there existed a valid
divorce between Murray and Bowden and that “there has not been a
valid entry of divorce as between [Murray] and Ms. Bowen.” On
these grounds, the trial court declared the marriage between
Scott and Murray annulled and void ab initio. Further, the
trial court concluded “[t]hat the deeds for the real properties
3 See infra footnote 4. -5- acquired during the marriage were executed because [Scott]
relied upon and was deceived [by Murray’s] misrepresentation. .
. . [T]hus, [Scott] [was] entitled to a judgment reforming the
deeds so as to remove [Murray]’s name as a grantee.” The trial
court ordered that Murray execute warranty deeds transferring to
Scott his interest in two parcels of real property acquired
during the purported marriage. The court also concluded that as
no marital property was acquired by the parties, there was no
valid claim for equitable distribution; Murray’s claim for
equitable distribution was therefore dismissed. Scott’s request
for attorney fees was also denied. Murray appeals.4
_________________________________
On appeal, Murray raises the following issues: whether the
trial court erred in (I) determining the presumption of marriage
was rebutted and annulling the marriage; (II) reforming the
deeds to real property; and (III) dismissing Murray’s equitable
distribution claim.
4 The trial court’s 13 December 2012 order specifically addresses the issues raised in Union County docket numbers 12 CVD 2045 and 07 CVD 1844. However, in response to the initial complaint under docket number 07 CVD 1844, Scott filed an answer and counterclaims. Scott’s counterclaims raised issues of child custody and support, post-separation support, alimony, attorney fees, and equitable distribution. The trial court’s 13 December 2012 order fails to address the issues of post-separation support and alimony. -6- I
Murray first argues the trial court erred in determining
that Scott rebutted the presumption that her marriage to Murray
was valid and in annulling the marriage. Specifically, Murray
argues that Scott failed to meet the burden of proof necessary
to rebut the presumption of a valid marriage and that the trial
court’s findings of fact do not support its conclusion that the
presumption of marriage was rebutted. We agree.
Initially, we note that Murray does not challenge the trial
court’s findings of fact but rather whether those finding
support its conclusion of law. Thus, even presuming the lowest
standard of proof is applicable to the evidence supporting the
trial court’s findings of fact, the question before us concerns
whether those findings of fact support the trial court’s
conclusions of law. See Mussa v. Palmer-Mussa, 366 N.C. 185,
191, 731 S.E.2d 404, 409 (2012) (In reviewing a trial court
order concluding that the plaintiff failed to meet his burden of
proof to establish that his marriage was void on grounds of
bigamy, our Supreme Court noted that “[a] trial court's
unchallenged findings of fact are presumed to be supported by
competent evidence and [are] binding on appeal. If the trial
court's uncontested findings of fact support its conclusions of -7- law, we must affirm the trial court's order.” (citations and
quotations omitted)).
“Upon proof that a marriage ceremony took place, it will be
presumed that it was legally performed and resulted in a valid
marriage.” Kearney v. Thomas, 225 N.C. 156, 163, 33 S.E.2d 871,
876 (1945) (citation omitted); see also Parker v. Parker, 46
N.C. App. 254, 256-57, 265 S.E.2d 237, 239 (1980) (“It is
presumed that a marriage entered into in another State is valid
under the laws of that State in the absence of contrary evidence
. . . .” (citation omitted)). “A second or subsequent marriage
is presumed legal until the contrary be proved, and he who
asserts its illegality must prove it. In such case the
presumption of innocence and morality prevail over the
presumption of the continuance of the first or former marriage.”
Kearney, 225 N.C. at 164, 33 S.E.2d at 877 (citation omitted),
cited by Mussa, 366 N.C. at 190, 731 S.E.2d at 408; see also
Denson v. Grading Co., 28 N.C. App. 129, 131, 220 S.E.2d 217,
219 (1975) (“The decided weight of authority . . . is that when
two marriages of the same person are shown, the second marriage
is presumed to be valid; that such presumption is stronger than
or overcomes the presumption of the continuance of the first
marriage, so that a person who attacks a second marriage has the -8- burden of producing evidence of its invalidity. When both
parties to the first marriage are shown to be living at the time
of the second marriage, it is presumed in favor of the second
marriage that the first was dissolved by divorce. These
presumptions arise, it is said, because the law presumes
morality and legitimacy, not immorality and bastardy.” (citation
omitted)).
Because Scott seeks to annul her marriage to Murray based
on the allegation that Murray never divorced his first wife, the
burden of proof lies with Scott. See Kearney, 225 N.C. at 164,
33 S.E.2d at 877.
In Parker, 46 N.C. App. 254, 265 S.E.2d 237, this Court
found error in a trial court’s ruling invalidating the marriage
between the plaintiff and the defendant despite evidence
indicating that the plaintiff and the defendant had not
participated in a marriage ceremony following the plaintiff’s
divorce from her first husband. Id. at 257, 265 S.E.2d at 239.
Prior to moving to North Carolina and filing a divorce action,
the plaintiff and the defendant lived in South Carolina as wife
and husband. During the course of their marriage, the plaintiff
discovered that her first husband failed to file divorce papers
and that she remained legally married to him. Under the laws of -9- South Carolina, “[a]ll marriages contracted while either of the
parties has a former wife or husband living shall be void.” Id.
at 257, 265 S.E.2d at 239 (citing S.C.Code ' 20-1-80). The
plaintiff filed divorce papers ending her first marriage but did
not participate in a subsequent marriage ceremony with the
defendant. Id. However, South Carolina law recognizes common
law marriage where the parties agree to assume the relationship
of husband and wife. Id. at 258, 265 S.E.2d at 240.
Furthermore, “[t]he agreement need not be express; it may be
adduced from circumstances . . . .” Id. (citation omitted).
The plaintiff’s unrebutted evidence indicated that she and the
defendant lived together as man and wife for six weeks in South
Carolina following the plaintiff’s divorce from her first
husband. Therefore, this Court reversed the conclusion there
was no valid marriage between the plaintiff and the defendant
and remanded the matter for further proceedings. Compare Ivory
v. Greer Bros., Inc., 45 N.C. App. 455, 461, 263 S.E.2d 290, 294
(1980) (affirming the opinion and award of the Industrial
Commission which concluded the plaintiff’s marriage to the
decedent was a nullity where the findings of fact, supported by
competent evidence, established that the plaintiff’s marriage to -10- the decedent occurred prior to the decedent’s divorce from his
first wife).
In Denson, 28 N.C. App. 129, 220 S.E.2d 217, two women
claimed entitlement to receive widow benefits. The first wife
sought to invalidate the second marriage on the basis that no
divorce decree had been filed in the first marriage. The Court,
acknowledging that the second marriage had been duly proven by
the record, noted that the burden of proof to invalidate the
second marriage rested with the moving spouse, there, the first
wife. Id. at 131, 220 S.E.2d at 219. The first wife
established the existence of the first marriage and testified
that she had not divorced nor received notice of divorce from
the husband. Id. at 131, 220 S.E.2d at 219. “There was no other
attempt to prove there had been no divorce.” Id. This Court
acknowledged that the first wife failed to overcome the
presumption of validity afforded her husband’s second marriage.
“The mere proof that one party had not obtained a divorce is not
sufficient to overcome the presumption, since the other party
might have obtained a divorce.” Id.
In Hendrix v. DeWitt, Inc., 19 N.C. App. 327, 198 S.E.2d
748 (1973), a matter appealed to this Court from our Industrial
Commission, we considered whether the fifth wife of a decedent -11- met her burden of proof to establish that her marriage never
ended in divorce and thus, the decedent’s marriage to his sixth
wife was void for bigamy. The record on appeal reflected that
the decedent had been employed as a long-haul truck driver who
spent substantial periods of time outside of North Carolina.
The attorney for the decedent’s employer and the attorney for
the sixth wife stipulated that no one was able to find any
record of a divorce in Randolph County, where the hearing was
conducted. “In our opinion the stipulation does not, as
appellant contends, compel the finding that the subsequent
marriage to [the sixth wife] was invalid.” Id. at 332, 198
S.E.2d at 751.
In the instant case, the trial court made the following
pertinent, unchallenged findings of fact:
2. That [Scott] and [Murray] entered into a purported marriage on or about the 13th day of February 2003 in Pennsylvania.
. . .
5. That on the parties’ marriage application, [Murray] answered no to the question have you ever been married before and that [Scott] relied upon [Murray’s] answer.
. . . -12- 7. That [Murray] testified that his answer no to a question that he knew the answer to was yes was done for “expediency” and some perceived urgency so that he could relocate from a halfway house in Philadelphia to the Union County/Charlotte area, but despite the testimony as to that urgency, [Murray] remained in Pennsylvania for several months.
8. That in January 2009, [Scott] became suspicious as to whether or not [Murray] had in fact been married to anyone else . . . . [Scott] learned that in fact [Murray] had been married in the early 1980’s to a woman by the name of Alice Bowen.
9. That as a result of [Scott’s] suspicions that there was a marriage that predated her own, she filed a discovery request that requested [Murray] to produce proof of a divorce decree.5
10. [Murray] never complied with that discovery request.
11. [Scott] had to file a motion to compel, however, [Murray] never responded satisfactorily to [Scott’s] motion to compel. This court never heard [Scott’s] motion to compel as to that issue.
5 Notwithstanding the trial court’s finding of fact, discovery documents in the record reveal Scott’s discovery request was for financial information only and contained no discovery request for proof of divorce. It appears that in making this finding, the trial court relied solely on Scott’s testimony given during the 1 October 2012 hearing. -13-
13. Both parties searched for a divorce decree in Onslow County, North Carolina. No divorce decree was found in Onslow County. [Murray] suggested that the Onslow County Clerk’s office now has no record of such a divorce because it was destroyed by either a flood or a fire.
14. That [Murray], despite having roughly ten months to do so, has searched no other counties for a copy of the divorce decree. He has presented no evidence of any divorce decree being obtained to Ms. Bowen nor any other proof of such a divorce ever occurring.
16. That [Scott] has rebutted the presumption that there is a valid divorce between [Murray] and Ms. Bowen and finds that there has not been a valid entry of a divorce decree as between [Murray] and Ms. Bowen.6
The trial court’s unchallenged finding that Scott and
Murray entered into a purported marriage on 13 February 2003 in
Pennsylvania confers upon their marriage a presumption of
validity. See Mussa, 366 N.C. at 193, 731 S.E.2d at 410 (“[T]he
district court found that in prior proceedings it had concluded
that [the] plaintiff and [the] defendant were married on 27
6 We note the absence of any finding by the trial court regarding Murray’s unnumbered exhibit, an affidavit by Alice Bowen (currently, Alice Scrantz) stating that she and Murray divorced in 1983. -14- November 1997. Plaintiff does not challenge this finding;
therefore, it is binding on appeal.”); see also Denson, 28 N.C.
App. at 131, 220 S.E.2d at 219.
The trial court found that “[b]oth parties searched for a
divorce decree in Onslow County, North Carolina. No divorce
decree was found in Onslow County.” We further note the trial
court’s finding “[t]hat [Murray], despite having roughly ten
months to do so, has searched no other counties for a copy of
the divorce decree. He has presented no evidence of any divorce
decree being obtained to Ms. Bowen nor any other proof of such a
divorce ever occurring.” These findings, which place the burden
of proof on Murray, indicate the trial court’s belief that Scott
met the minimum criteria to support a finding that no divorce
decree was entered in Murray’s first marriage. We do not
believe the trial court’s findings of fact support this belief.
This Court’s holding in Hendrix, 19 N.C. App. 327, 198
S.E.2d 748, informs us that the inability to produce a divorce
decree after a records search in one county is insufficient to
support a finding that no divorce decree was entered and thus,
insufficient to rebut the presumption of validity afforded a
subsequent marriage. See id. at 331-32, 198 S.E.2d at 751. On
this point, the evidence presented before the trial court was -15- that Murray married Bowen in 1981 while both were Marines
stationed at Camp LeJune, in Onslow County, and that Bowen was
transferred to another base prior to any communication regarding
a divorce proceeding. Murray testified that he did not know to
what base Bowen was transferred. Even if the standard of proof
required under these circumstances is preponderance of the
evidence, the trial court’s finding that no divorce decree was
found upon a records search in Onslow County fails to support
the conclusion “[t]hat [Scott] has rebutted the presumption that
there is a valid divorce between [Murray] and Ms. Bowen and . .
. that there has not been a valid entry of a divorce decree as
between [Murray] and Ms. Bowen.” See id.
As there are no other findings that would support grounds
for rebutting the presumption of validity afforded the marriage
of Scott and Murray, the trial court erred in concluding that
the presumption of validity has been rebutted. Accordingly, the
order granting the annulment of the marriage of Scott and Murray
is reversed.
II
Murray argues that the trial court erred in reforming the
deeds to real property. We agree. -16- “An action to reform an instrument usually arises in cases
in which there has been mutual mistake of the parties or mistake
by one of the parties and fraud by the other. All the essential
elements for reformation must be proved by clear, strong, and
convincing evidence.” Dorsey v. Dorsey, 306 N.C. 545, 547, 293
S.E.2d 777, 779 (1982) (citations omitted) (considering whether
the plaintiff made a prima facie case for reformation of a deed
to real property held as tenants by the entirety where he
alleged that his wife’s previous marriage had ended with the
filing of a divorce decree following her marriage to the
plaintiff).
While fraud has no all-embracing definition and is better left undefined lest crafty men find a way of committing fraud which avoids the definition, the following essential elements of actionable fraud are well established: (1) False representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party.
Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 323 N.C. 559,
568-69, 374 S.E.2d 385, 391 (1988) (citation omitted).
In pertinent part, the trial court made the following
unchallenged findings of fact:
17. That on the 24th day of October, 2003 [Scott] purchased realty located at 3900 -17- Courtland Drive, Charlotte, NC 28212 and on the 24th day of June 2005 [Scott] also purchased realty located at 3323 Sandalwood Drive, Waxhaw, NC 28173.
18. That the deed to said properties are titled to [Scott] and [Murray].
19. That [Scott] did not want [Murray’s] name on the deed to the property located at 3900 Courtland Drive, Charlotte NC 28212 because [Murray] had contributed no monies towards the purchase of said property. However, [Scott] testified that she was advised by her attorney, at the time, that because [Murray] was her spouse, it was necessary to put his name on the deed.
20. That [Murray] intended to deceive and influence the acts of [Scott].
21. That [Scott] relied upon [Murray’s] misrepresentation and was actually deceived as evidenced by the fact that she had him named as her spouse, a tenant by the entirety of the residential realties.
The trial court stated the following conclusion:
3. That the deeds for the real properties acquired during the marriage were executed because [Scott] relied upon and was deceived [by] [Murray’s] misrepresentation. [Murray] intended to deceive and influence the acts of [Scott]; and thus, [Scott] is entitled to a judgment reforming the deeds so as to remove [Murray’s] name as a grantee.
The trial court’s conclusion that Scott is entitled to
reformation of the deeds to the real property she purchased
appears to be predicated solely on the trial court’s conclusion -18- that Murray intended to deceive Scott as to his status as
Scott’s spouse, where Murray remained legally married to a prior
spouse. However, as discussed in issue I, Scott has not met the
burden of proof to rebut the presumption of validity afforded
her marriage to Murray. Therefore, the trial court’s findings
of fact indicating that Murray deceived and influenced Scott by
representing himself as her spouse are unsupported. As this
appears to be the sole basis for the trial court’s conclusion
that Scott is entitled to reformation of the deeds to real
property purchased during the course of her marriage to Murray
and held as tenants by the entirety, we reverse the trial
court’s order as to reformation of the deeds.
III
Lastly, Murray argues that the trial court erred as a
matter of law in dismissing his equitable distribution claim.
We agree.
“‘Marital property’ means all real and personal property
acquired by either spouse or both spouses during the course of
the marriage and before the date of the separation of the
parties, and presently owned[.]” N.C. Gen. Stat. § 50-20(b)(1)
(2013). -19- The trial court made the following pertinent, unchallenged
findings of fact:
3. That [Scott] and [Murray] entered into a purported marriage on or about the 13th day of February 2003 in Pennsylvania.
17. That on the 24th day of October, 2003 [Scott] purchased realty located at 3900 Courtland Drive, Charlotte, NC 28212 and on the 24th day of June 2005 [Scott] also purchased realty located at 3323 Sandalwood Drive, Waxhaw, NC 28173.
18. That the deed to said properties are titled to [Scott] and [Murray].
21. That [Scott] . . . had [Murray] named as her spouse, a tenant by the entirety of the residential realties.
The trial court concluded “[t]hat no valid claim for
equitable distribution exists between the parties as there was
no marital property acquired.”
As discussed in Issue I, the trial court’s findings of fact
are insufficient to rebut the presumption of validity afforded
the marriage between Scott and Murray. Therefore, as real
property was purchased and acquired as tenants by the entirety
during the course of the marriage between Scott and Murray, it -20- appears at this stage, that it was marital property and
therefore, subject to equitable distribution. See id.
Accordingly, we reverse the trial court’s order in as much as it
dismisses Murray’s equitable distribution claim on the basis
that no marital property was acquired and remand for further
proceedings.
Reversed and remanded.
Judges HUNTER, Robert C., and STEELMAN concur.
Report per Rule 30(e).